John Busker v. Wabtec Corp. ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 12 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN BUSKER, on behalf of himself and all No. 17-55165
others similarly situated and the general
public, D.C. No.
2:15-cv-08194-ODW-AFM
Plaintiff-Appellant,
v.
WABTEC CORPORATION, a Pennsylvania ORDER
corporation; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Otis D. Wright II, District Judge, Presiding
Argued and Submitted August 8, 2018
Submission Withdrawn September 6, 2018
Resubmitted April 12, 2022
Pasadena, California
Before: CLIFTON and CALLAHAN, Circuit Judges, and HOYT,* District Judge.
John Busker sued Wabtec alleging, inter alia, that it had failed to pay wages
as required by the California Prevailing Wage Law. Busker appealed to us from
the district court’s grant of summary judgment in favor of Wabtec. We determined
*
The Honorable Kenneth M. Hoyt, United States District Judge for the
Southern District of Texas, sitting by designation.
that Busker’s claim under the California Prevailing Wage Law turned on a
question of California law:
Whether work installing electrical equipment on locomotives and rail
cars (i.e., the “on-board work” for Metrolink’s PTC project) falls
within the definition of “public works” under California Labor Code
§ 1720(a)(1) either (a) as constituting “construction” or “installation”
under the statute or (b) as being integral to other work performed for
the PTC project on the wayside (i.e., the “field installation work”)?
We certified that question to the Supreme Court of California. Busker v. Wabtec
Corp., 903 F.3d 881 (9th Cir. 2018). That court accepted certification and on
August 16, 2021, held that:
This case involves two questions: (1) Does publicly funded work on
rolling stock, like train cars, fall under the statutory definition of
“public works”? (2) Alternatively, does the work on rolling stock in
this case qualify as “public work” because it is integral to other
activity that itself qualifies as public work? The answer to both
questions is no.
Busker v. Wabtec Corp., 492 P.3d 963, 966 (2021), reh’g denied (Sept. 29, 2021).
In accordance with that decision, Wabtec has moved for the entry of a final
disposition affirming the district court’s grant of summary judgment. Busker does
not oppose the motion.
The district court’s grant of summary judgment in favor of Wabtec on
Busker’s claim under the California Prevailing Wage Law is AFFIRMED.
2